ROBERT WOOTEN and REPATRIATION COMMISSION

[2013] AATA 384

[2013] AATA 384

Division	VETERANS' APPEALS DIVISION
File Number	2012/2147
Re	ROBERT WOOTEN
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe Member Dr G Maynard
Date	6 June 2013
Place	Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Senior Member Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – Pensions and benefits – Service pension – Statement of Principles – Relevant date of clinical onset – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986

SECONDARY MATERIALS

Statement of Principles: Instrument No. 102 of 2007

REASONS FOR DECISION

Senior Member Bernard J McCabe
Member Dr G Maynard

INTRODUCTION

1. Mr Robert Wooten suffers from an anxiety disorder. He says the condition is connected to his defence service in the Royal Australian Air Force (RAAF). He asked for the condition to be accepted so he might receive an increase in his service pension paid under the Veterans Entitlements Act 1986. Mr Wooten suffers from a number of health conditions and some of these have already been accepted as defence-related.

2. Mr Wooten worked as an airframe technician. He undertook maintenance work on a variety of aircraft during the course of a successful career in the RAAF. He argues the anxiety condition can be traced back to his work on C-130 Hercules aircraft at RAAF Richmond between 1971 and 1974. He says he experienced category 1A or category 2 stressors within the meaning of the relevant Statement of Principles (SoP), Instrument No. 102 of 2007 (as amended by No. 16 of 2011).

3. The Repatriation Commission accepts the applicant suffers from an anxiety disorder. It also accepts the applicant experienced a category 2 stressor during the relevant period. Mr Kelly, the advocate for the Commission, also helpfully suggested one of the incidents described by the applicant might qualify as a category 1A stressor. The only issue that remains in dispute is the date of onset. The relevant SoP requires that the anxiety condition must have been present (that is to say the symptoms must have been present so that the condition was diagnosable, even if only with the benefit of hindsight) within six months after the applicant experienced a category 2 stressor, or within two years after he experienced a category 1A stressor. The Commission suggests the date of onset is much later than 1974-1975 (or 1977 if the category 1A stressor is accepted). The applicant said he has had the condition since 1974-1975.

   THE STRESSORS

4. The applicant referred to two incidents or experiences which he said amounted to category 2 stressors for the purposes of the SoP. He said he was posted to work on the maintenance of Hercules aircraft in Richmond in around 1971. As part of his work, he said he was routinely exposed to dangerous chemicals used in the maintenance of the aircraft, including chemicals used in the de-seal/re-seal of fuel tanks. In his evidence, he explained he became aware while he was doing the de-seal/re-seal work that at least one of the chemicals he used was known to cause cancer. In his statement, Mr Wooten said he was not specifically aware of the dangers posed by the other chemicals at the time, although he said they were noxious and everyone he worked with assumed the other chemicals were bad for your health. The applicant said he was also required to work in dark, cramped and poorly ventilated spaces within the wing structures and fuel tanks of the aircraft. He claimed:

   (a)the knowledge he was working with dangerous chemicals, and

   (b)being confined inside the cramped workspaces, especially when noisy rivet work was being done on the aircraft

   were both “negative life events” that reflected a “perceived lack of control over tasks performed and stressful work-loads”: SoP at [9]. The Commission accepted this characterisation of the events. We are not so sure: it is unclear to us whether these events as described satisfy the definition.

5. The applicant also referred to an accident where he tripped and nearly suffered what he thought might have been a very serious accident. He said he was walking along a wing that had been removed from an aircraft and placed upside down on the floor of the work space. The bottom of the wing was facing up and its protective panels had been removed so that the struts which normally support the wing structure were exposed. The struts were made of aluminium and the ends were sharp. Mr Wooten said his overalls caught on one of the struts and he tripped. The applicant said he nearly fell onto two of the struts. He managed to break his fall without coming into contact with the struts; the applicant said that was pure luck. If he had not been able to arrest his fall he would have impaled himself on two of the struts. That incident may amount to a life-threatening event, which would be a category 1A stressor for the purposes of the SoP.

   DATE OF ONSET

6. While we have some doubts about the way in which the category 2 stressors described by the applicant fit within the definition in the SoP, we will accept for the purposes of the exercise that the applicant did experience both category 1A and 2 stressors during the period 1971-1974/1975. We will focus instead on the central issue in this case: the date of onset.

7. The applicant said the date of onset was in 1974-1975 because he said he was experiencing symptoms at that point. In his claim form (exhibit one at p. 9), he referred to “feeling sad, anxious and worried” about his exposure to the chemicals during that period. In his evidence at the hearing, he also referred to an incident during the relevant period where he was using a tool to mix chemicals and became suddenly agitated by noise elsewhere in the workshop. He said he felt an urge to fling the tool at someone or something. He said that was the sort of exaggerated, startled response that might establish the existence of a diagnosable condition. His treating psychiatrist, Dr Nielsen, suggested that history was enough to justify a diagnosis of post-traumatic stress disorder (PTSD) at that point (exhibit one at pp. 40-41) although the applicant now accepts he suffers from anxiety disorder.

8. Dr Nielsen’s opinion about the date of onset is based on the applicant’s self-reporting. That history must be treated with caution, for several reasons. Firstly, Mr Wooten appears to have been consuming a great deal of alcohol during the period under review. Working out whether he had symptoms of anxiety as opposed to the consequences of excessive alcohol intake is likely to be difficult. Secondly, Mr Wooten’s evidence at the hearing tended to focus on his feelings and reactions to the risk of health problems in the years after 1975. While we accept he did refer to thoughts, feelings and reactions he experienced in the relevant period, most of the stress he refers to appears to have arisen later in life. We also note Mr Wooten acknowledged in his evidence (exhibit one at pp 164-165) he had made mistakes before in his account of events that occurred during this period. No doubt that was because his condition has affected the quality of his recollection, rather than because of any conscious desire to mislead.

9. In the circumstances, we would prefer to see some evidence in the medical records that corroborates Mr Wooten’s recollection of what was going on in 1974-1975. As it happens, there is none. The earliest reference to stress or anxiety in the service medical records is in 1989: exhibit 3. The applicant said the absence of a record reflects his reluctance to complain about stress. While we accept the applicant may have been reluctant to mention stress to his doctors, we would have expected to see some evidence of the condition impacting on his life (which would show up in his records) before 1989 if he was already sufficiently ill for a diagnosis to be made.

10. We are required to be reasonably satisfied as to the date of onset. In the circumstances, we cannot be reasonably satisfied the date of onset was before the late 1980s when the medical records start to record symptoms. That means the applicant’s claim cannot succeed.

    CONCLUSION

11. Mr Wooten is obviously ill. His preoccupation with the risks arising out of his exposure to dangerous chemicals during his service seems real enough. But we are unable to be satisfied the date of onset can reliably be placed in the mid to late 1970s. That means he is unable to satisfy the requirements of the relevant SoP. The reviewable decision must therefore be affirmed.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Member Dr G Maynard.

......................[Sgd]..................................................

Associate

Dated 6 June 2013  

Date of hearing	8 April 2013
Advocate for the Applicant	Ms Helena Smith
Advocate for the Respondent	Mr Jeff Kelly, Departmental Advocate